“An unprecedented crisis in the High Court”- Prof. G.L.Peiris Posted on April 8th, 2017

by C.A.Chandraprema Courtesy The Island

April 8, 2017, 8:28 pm
An interview with Prof. G.L.Peiris regarding the situation arising from the decisions made by the Judicial Services Association at their Special General meeting held on 1 April 2017 in relation to the appointment of Mr Ramanathan Kannan as a High Court judge.

Q. You were one of the first to hold a press conference on the appointment of Mr Ramanathan Kannan to the High Court and you are familiar with the letter of 23 February 2017 written by the Judicial Services Commission to the President. If a High Court Judge has been appointed without a valid recommendation from the JSC in terms of article 111(2)(a), what is the legality of that appointment?

A. Appointments to the High Court are governed by Artcle 111(2) of the Constitution which declares that judges of the High Court shall be appointed by the President on the recommendation of the Judicial Services Commission after consultation with the Attorney General. The recommendation from the JSC is a mandatory condition. In this case the letter that you mentioned makes it clear that the JSC had acted on a mistaken assumption. In any case the sequence in which this recommendation had been made is wrong. The constitution contemplates that the JSC will make a recommendation to the President, not that the President will contact the JSC and ask them to make a recommendation. That is an inversion of the entire sequence. In this case what had happened was that a political party had first approached the Minister of Justice but he had refused to accommodate them very rightly on the grounds that political parties have no role in the appointment of judges. Then this political party approached the Bar Association. Some members of the Bar Association had then written to the President and followed it up with a personal meeting as well. That shows how interested these persons were in having this appointment made. The President then writes to the JSC saying that the Bar Association would like this person appointed to the High Court. The first thing to note is that the BASL has no role in this matter whatsoever. The BASL consists of practing lawyers. If it is left to practicing lawyers to appoint judges, that will lead to enless abuse. For that reson the BASL is left out of the process of appointing or promoting judges. Even if the BASL had recommended this appointment, it is still wrong. If the President acted on the recommendation of the BASL, that amounts to the President acting on a recommendation coming from an unwarranted source. The situation is now even worse because it has become clear that the BASL has nothing to do with this at all. Amal Randeniya the Secretary of the BASL has made it clear that this recommendation was not made by the BASL. A few people from the BASL acting on their own had gone to the President and asked that this appointment be made. We now have a preposterous situation where a High Court appointment has been made without the proper procedure being followed. However the Judge has been appointed, he has taken oaths and is now functioning as a High Court Judge. In the meantime the Judicial Services Association passed a unanimous resolution at a general meeting objecting to this appointment and declaring it to be an interference with the independence of the judiciary. They have asked that the judge be removed and that he be barred from functioning as a judge until he is removed. So there is an unprecedented crisis in the High Court.

Q. The JSC is made up of the Chief Justice and two senior judges of the Supreme Court. When a body like that says that the recommendation they made earlier has ‘no force or avail in law’, is a further recommendation in terms of Article 111(2)(b) necessary to have a High Court judge removed?

A. I do not think so. Because the Judicial Services Commission says they have not recommended this appointment which means that the requirements of the constitution have not been fulfilled. Without a valid recommendation by the JSC, the President cannot make an appointment to the High Court. To say that something ‘has no force or avail in law’ is a very strong statement.

Q. If a high authority makes a recommendation based on misrepresentations by which he was misled, and he later discovers what had happened, doesn’t that authority have the right to withdraw the recommendation he made earlier?

A. Were it otherwise, consider the consequences. The authority in question can be tricked into giving his recommendation on false information. If there is no remedy, the person who is responsible for that deception has his way. This is not a private matter but the appointment of an officer exercising the judicial power of the republic. In a situation like that you cannot countenance in any manner whatsoever, anything falling short of total integrity.

Q. Though the JSC’s letter of 23 February does not say so expressly, it implies that the Judicial Services Commission was misled by the elected head of the unofficial bar. The gravity of that statement is mind numbing when you think about it.

A. With regard to appointments to the High Court, the JSC has a fundamental responsibility because the President will be making the appointment on their recommendation. If such recommendation is obtained by means of a subterfuge, deception or suppression of the truth, then the JSC is bound to bring it to the notice of the appointing authority the President.

Q. The outgoing President of the BASL said in so many words at former CJ Sripavan’s farewell that despite any letters he may have written or any canvassing he may have done, it was still incumbent upon the JSC to exercise due diligence before making that recommendation. How does such an argument sound to you?

A. What that proposition implies is that when the President of the BASL says something to the Chief Justice, the latter will have to seek independent verification. He will have to start from the premise that the President of the BASL may not be telling him the truth. So he has to go to third parties to ascertain the veracity of what was said to him. That cannot be the basis of a sound working relationship between the BASL President and the Chief Justice. It is very wrong to put the onus on the JSC to ascertain the truth of what is told to them by the President of the BASL. Surely the JSC is entitled to assume that what they are being told is the truth and that the persons concerned are acting honourably.

Q. If an appointment has been made on the basis of outright misrepresentations, can it be argued that the appointment is still valid despite the manner in which it was ‘engineered’?

A. The President does not have untrammeled power to appoint anyone he likes as a High Court Judge. His power is curtailed by the mandatory condition that the JSC has to recommend that appointment. Now to say that his appointment still remains valid is to put a premium on the suppression of the truth. If you resort to some sort of deception or subterfuge, you can get away with it because what you do is irreversible. That cannot be sound policy.

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